California Statute and Regulatory Structure
The American legal system, like those of many western countries, follows a two-tiered system of laws dating back to the Roman era. The first tier consists of statutes (also referred to as primary or enabling legislation) adopted by a legislature and the second tier consists of regulations and administrative laws adopted by the Executive branch, including various
regulatory agencies, under delegated authority or mandate from the statutes.
a. Federal System
In the Federal system, the primary legislation (i.e., statutory law) is found in the United States Code (USC) and the secondary or administrative rules found in the Code of Federal Regulations (CFR).
b. State System
i. Primary Law (Statutes)
In California, the primary legislation/statutes are found in the California Code and the secondary or derivative legislation are in the California Code of Regulations. There are currently 29 “Codes” in the California Code, identified by general subject area as follows: 1
Name of code
Business and Professions Code Insurance Code
Civil Code Labor Code
Code of Civil Procedure Military and Veterans Code
Commercial Code Penal Code
Corporations Code Probate Code
Education Code Public Contract Code
Elections Code Public Resources Code
Evidence Code Public Utilities Code
Family Code Revenue and Taxation Code
Financial Code Streets and Highways Code
Fish and Game Code Unemployment Insurance Code
Food and Agricultural Code Vehicle Code
Government Code Water Code
Harbors and Navigation Code Welfare and Institutions Code
Health and Safety Code
Statutes relating to artificial light can be found in various California Codes such as those highlighted above. When viewed through an EHS lens, however, it is evident that they are, for the most part, out of date. Those that have been updated primarily address only global warming and energy efficiency issues not the EHS issues described in this proposal. 2 As
such, the lighting statutes in California are out of step with modern EHS laws that other
1 See https://en.wikipedia.org/wiki/California_Codes
2 Such Codes include, for example, the Streets and Highways Code (e.g., street light funding), the Vehicle Code (motor vehicle
lamps), the Public Utilities and Public Resources Codes (e.g., light energy conservation and efficiency), and the Health and
Safety Code (e.g., prohibition of hazardous substances in general purpose lights).
sectors of the economy have to comply with to address EHS threats of their
activities/products. For example while it would be unlawful for Neighbor A to dump household waste in the street or discharge pesticide rinsate to the storm drain, under existing law it would legal for that person to install a bright LED house light that emits waste light into the street. Further, by failing to address EHS issues, these updated statues have made EHS matters worse by allowing (if not requiring) bright, glary electronic lighting such as LEDs that otherwise would not have passed EHS muster without
substantially more research and modification of product. It is unlikely that LED lights would have become the global standard in their present form (or in any form) if they had not been given a pass on EHS review. Current lighting statutes thus represent a misallocation of resources and a subsidy of lighting technology that has not proven itself as being in the public interest. Much EHS information indicates rather that the lights
essentially produce a waste (waste light), not a product fit for consumption that the consumer would choose to buy if not coerced or given no other choice or if face with potential light-related tort liability is used. Any purported energy and cost savings are thus far outweighed by the EHS costs of waste light and energy wasted producing it. To the extent that the new electronic lighting is consistent with global warming mandates, one
has to ask, at what cost? Are we merely exchanging global warming for global brightening? While such shallow legislative analysis has been good for the LED lighting industry, at least in the short term, it has actually increased overall costs by creating “negative externalities” such as light pollution. It has also given the lighting industry the message that their lights are fine for public consumptions reducing any incentive for
industry to address lighting EHS issues.
One need not look far to figure out how such dysfunction in the legislative process could occur. Transformation of the economy to energy saving LEDs seemed like a win-win proposition. To this day city councils coo over budgetary savings of the lights and overseas factories churn them out like silicon chips. Artificial lighting has become “commoditized”. Experts consulted in modernizing older lighting statutes often have connections with the lighting industry and are not able to give objective input. Ditto for
experts from university lighting institutes with close ties to industry and a shocking lack of awareness or interest in EHS issues associated with the lighting they are developing. It is obvious that to them, considering EHS issues is a “buzz kill” and money loser. In summary, it does not make sense to reduce the threat of one type of environmental harm (e.g., water pollution, global warming) at the expense of another (e.g., air pollution, global brightening).
To better serve the interests of the people of the State, it is evident that California’s lighting statutes need to be updated and modernized to address the full scope of issues associated with modern lighting, not just purported global warming goals. As such, it is proposed that a new (i.e., 30 th ) code be added to the California Code to house or incorporate by reference all California lighting laws, including light related statutes in existing code sections and a new set of statutes addressing lighting EHS issues as
described in this proposal. The proposed new lighting code would include the following elements:
a) Technical and legal definitions, as outlined above, for artificial lighting
laws and regulations promulgated thereunder.
b) Statements of purpose and declarations for proposed artificial lighting
EHS Code.
c) Describe scope and applicability of laws
d) Identify artificial lighting sectors for economy, including public and
private domains;
e) Minimum artificial lighting EHS standards by sector, for all sectors of
the economy
f) Bring uniformity and consistency to artificial lighting laws in like sectors, as appropriate;
g) Require establishment of new CalEPA agency charged with
implementing artificial lighting EHS Code and promulgating regulations
thereunder
h) Require that affected regulatory agencies update applicable lighting
laws and regulations for a given sector to meet or exceed the proposed
artificial lighting EHS standards.
i) Require that artificial lighting plans consistent with the EHS Code and
regulations promulgated thereunder be developed for each lighting sector
under the Code.
It is proposed that this Code be entitled the “Artificial Lighting Code” or “Light and Dark Code” somewhat analogous to the existing Water Code.
ii. Secondary Law (Regulations)
Secondary legislation in California is embodied in the California Code of
Regulations (CCR), which consists of 28 titles representing the regulations of
approximately 200 regulatory agencies, as follows:
Title 1: General Provisions Title 15: Crime Prevention and Corrections
Title 2: Administration Title 16: Professional and Vocational Regulations
Title 3: Food and Agriculture Title 17: Public Health
Title 4: Business Regulations Title 18: Public Revenues
Title 5: Education Title 19: Public Safety
Title 6: Governor’s Regulations (empty) Title 20: Public Utilities and Energy
Title 7: Harbors and Navigation Title 21: Public Works
Title 8: Industrial Regulations Title 22: Social Security
Title 9: Rehabilitative and Developmental Services Title 23: Waters
Title 10: Investment Title 24: California Building Standards Code
Title 11: Law Title 25: Housing and Community Development
Title 12: Military and Veterans Title 26: Toxics
Title 13: Motor Vehicles Title 27: Environmental Protection
Title 14: Natural Resources Title 28: Managed Health Care
It should be noted that each of the above Titles have evolved over time as a result of agency rule-making actions under delegated authority from statute, including enacting, amending or modifying, and/or repealing regulations. Such actions are often proposed in the form of an
“act” and the once adopted collectively referred to by subject as “code” even though
regulation not statute. Examples – California Energy Code, California Building Code.
Consistent with this practice, this proposal proposes a California Artificial Lighting Code
consisting of amendments to related regulations such as the titles shown in bold above.
It is scientific fact that without natural light from the sun and nurturing darkness from the
moon and starts at night, there would be no life on earth as we know it. Physics further tells
us that without light there would not even be physical reality. In other words, the world would
not exist. Given the elemental and pervasive nature of lighting issues, it should therefore be
no surprise that
- Other Legal Considerations
In its early years before statutes were developed, the American legal system relied heavily on English common law, which consisted of the body of settled court case decisions developed in England over hundreds of years. The American legal system ultimately developed its own
version of Common Law borrowing in part from English laws and statutes. Common Law principles and doctrines have also been incorporated into, or had a great influence on, most statutes adopted by the states. As such, this proposal identifies Common Law causes of
action and associated legal definitions relevant to the regulation of artificial light to form the basis for developing statutes for the EH&S regulation of artificial light. These include tort, property law and other types of civil claims, such as follows:
c. Common Law Terms & Civil Actions Relevant to Light Regulation
i. Property Law
a) Land Owner – Holder of legal title to land, as evidenced by deed.
b) Land Occupant or Tenant – Holder of lease or rental interest in land, or portion thereof, entitling such person to exclusive possession of agreed portion land for term or lease or rental agreement.
c) Land Easement – A nonpossessory property interest that allows the easement holder to use another person’s land, or limits the land owner in the use of the land, for the benefit of the easement holder.
d) Trespass – Wrongful interference with an owner’s (or legal occupant’s) right to exclusive possession of real property by physical entry onto that property; Entry of a person (or object controlled by that person) onto another person’s land (owner or occupant) without their permission.
e) Nuisance – the unreasonable, unwarranted, or unlawful use of one’s property (owner, occupant or easement holder) in a manner that substantially interferes with the enjoyment or use of another individual’s property (owner, occupant or easement holder), without an actual trespass or physical invasion of the land. See Legal Dictionary, The Free Dictionary, by Farlex at https://legal-
dictionary.thefreedictionary.com/public+nuisance.
f) Misuse of Easement – exceeding the scope or wrongful use of an easement or right-of-way.
g) Ouster – The wrongful dispossession or exclusion of a person entitled to possession of property. Ouster occurs when someone knowingly prevents a landowner from entering or using all or part of their property
h) Ultrahazardous Activity – Breach of an absolute duty of care to protect others from an ultrahazardous condition or activity on property - ii. Tort Law
- a) Assault – An intentional act directed toward another (e.g., threat) that causes that person apprehension of imminent physical harm or unwanted physical contact.
- b) Battery – An intentional act directed toward another that causes physical harm or unwanted physical contact to that person.
- c) Negligence – an act or omission proximately causing harm to a person to which a duty of reasonable care is owed representing a breach of that duty as judged by what a reasonable and prudent person would have done under the circumstances.
- d) Products Liability – Breach of the duty of the manufacturer or supplier to protect the consumer from harm resulting from a dangerous or defective product.
- iii. Other
- a) Degradation – Lowering the quality of something by introduction of a foreign substance.
- b) Contamination – the rendering of something impure or harmful by introduction of a foreign substance (i.e., contaminant).
- c) Breach of Fiduciary Duty – the failure of a trustee to exercise the duties owed to beneficiaries of the trust.
d. Statutory Terms & Civil Actions Relevant to Light
i. Assault & Battery – Common law actions combined into single cause of action.
ii. Contamination – Degradation of a substance or medium (e.g., air, water, soil) to a degree that it creates a public health hazard (e.g., through exposure, poisoning or spread of disease).
iii. Pollution – Degradation of a medium (e.g., air, water, soil) to the extent that it results in contamination or impairs beneficial uses (e.g., taste and odor). See also EPA definition.
iv. Condemnation – an action by the government that so interferes with the owner or tenant’s possession or use of land so as to result in ouster. The Constitution requires that the owner receive fair compensation for the value of the condemned land.
v. Public Easement – Easement in land for the benefit of the public (e.g., access, view)
vi. Easement for View – Public or private easement requiring land owner to refrain from activity that could impair use of the easement for its intended purpose (e.g., access, view).
vii. Private Nuisance – A nuisance that interferes with the rights of a single property owner or occupier, not the public in general.
viii. Public Nuisance – A nuisance that harms or interferes with the rights of the public in general or causes special harm to an individual property owner/occupier not shared by the public.
ix. Public Trust Doctrine – duty of sovereign states to hold and preserve certain resources including wildlife, for the benefit of its citizens. The doctrine provides that natural resources belong to the whole public; private owners may not deprive the public of access.
Environmental Resources Damage – State or Federal government authorized to sue responsible parties for damages for harm to natural resources caused by the release of hazardous substances. See CERCLA, 42 U.S.C. §§ 9607-9675, the Oil Pollution Act (OPA), 33 U.S.C. §§ 2701-2761 and 33 U.S.C. § 1321 of the Clean Water Act.
xi. Child Abuse – an act, or failure to act, on the part of a parent or caretaker that results in the death, serious physical or emotional harm, sexual abuse, or exploitation of a child, or which places the child in an imminent risk of serious harm (42 U.S.C.A. §5106g).
xii. Civil Rights Claims – Various statutory claims based on constitutional rights to due process and equal protection (e.g., Americans with Disabilities Act).
e. Proposed Regulatory Definitions Based on Above
i. Artificial Light – Light emitted by a man-made, artificial including electrical, electronic, or gas plasma.
ii. Natural Light – Light from the sun during the daytime; moon and stars during the night time; and a combination of both during dawn and dusk.
iii. Light Trespass – The casting of artificial light beyond one’s property boundary onto another person’s property (owner or occupant) without their permission.
iv. Private Light Nuisance – Artificial light emitted from private property that substantially interferes with another person’s enjoyment or use of their land (owner, occupant or easement holder); or impairs a residential beneficial use listed in these regulations or applicable local ordinance promulgated thereunder.
v. Public Light Nuisance –
a) Artificial light emitted from public property that harms or interferes with the rights of the public in the legal use of that property, causes special harm to a private individual not shared by the public, or impairs a beneficial use of that property specified in these regulations or applicable local ordinance
promulgated thereunder; or b) Artificial light emitted from private property that harms or interferes with the rights of the public in the legal use of public property, causes special harm to a private individual using public property not shared by the public, or impairs a beneficial use of residential or public property lighting sector specified in these regulations or applicable local ordinance promulgated thereunder; or
vi. Light Degradation – The degradation of natural light with unnecessary artificial light.
vii. Light Pollution – The degradation of natural light with unnecessary artificial light that impairs one or more of the designated beneficial uses of natural light in a given lighting sector, as specified in these regulations or local ordinance promulgated thereunder.
viii. Light Easement – An easement for view that requires the owner/occupier of the servient estate to refrain from emitting artificial light that might obscure, blind, or otherwise interfere with the view of the beneficiary of the easement. ix. Hazardous/Ultra-Dangerous Lights – Lights of sufficient brightness, intensity, energy or other characteristics so as to pose an imminent risk of death or serious harm or acute or chronic toxicity (e.g., __K LEDs, lasers, weaponized light).
State of Mind for Liability
a) Intentional conduct
b) Acts done knowingly or recklessly
c) Negligent acts
d) Strict Liability – Hazardous/Ultra-Dangerous Lights, defectively
designed or manufactured lights,
g. Third Party Civil Suits
The proposed regulations would authorize third party law suits against private citizens, corporations and other forms of business organizations, and public entities for alleged statutory claims related to light listed above. Such suits could be brought in state or federal court provided jurisdiction exists under applicable rules of civil procedure for each court.
i. Standing to sue
a) Tort Claims – In general, the claimant must have been physically or mentally harmed, or be suing on behalf of another person who has been physically or mentally harmed by the alleged wrongful action. In other words, the gravamen of the claim must be harm to a human being, not a plant, animal or non-living legal entity such as a corporation. Also, monetary or property damage alone is not sufficient to show harm.
b) Property Claims – gravamen of claim must be damage to property or property interest (e.g., exclusive occupancy, use and enjoyment). Harm to human health may be sufficient for this showing but is not necessarily required.
c) Other Claims
A. Ecosystem or Resource Damage – gravamen of the claim must be harm to
plant, animal, ecosystem or natural resource (e.g., darkness).
B. Environmental Claims – gravamen of claim must be harm to living being
from light pollution, degradation, or public nuisance Biological systems have evolved over millions of years based on the 365-day year and
the 24-hour day/night cycle. These biological systems include humans, wildlife, plants, and the ecological system that supports them. The molecular structure of these systems is dependent both on darkness and light to trigger growth, eating, sleeping and other functions. Therefore,
both darkness, light and temperature are all critical needs of biological systems that must be protected. [move]
h. Existing State Lighting Laws and Regulations
Existing State laws regarding lights and illumination are found in various consist primarily of regulations issued under the California Energy Code by the California Energy Commission setting minimum energy
efficiency/efficacy standards for new and existing building, including indoor and outdoor residential and commercial lighting. See Title 24. regarding energy efficiency standards for building and appliance lighting.
These regulations include California’s energy code is designed to reduce wasteful and unnecessary energy consumption in newly constructed and existing buildings. The California Energy Commission updates the
Building Energy Efficiency Standards (Title 24, Parts 6 and 11) every three years by working with stakeholders in a public and transparent process.